Stone v. EarpStone v. Earp
This is a chancery suit in which plaintiff asks that he be decreed the legal and equitable owner of a 1948 International dump truck and Fruehauf dump trailer. Defendant filed a cross bill in which he asks for an accounting for moneys received by plaintiff in payment for the employment of the vehicles under a “lease agreement.”
In September, 1949, plaintiff was associated-with his brother in the business of hauling sand and gravel under the name of the Allstate Supply Company. He owned several heavy dump trucks and trailers, among them being a 1948 International dump truck and a 1948 Fruehauf trailer. Sometime prior to September 19, 1949, plaintiff had an argument with 2 of the drivers in his employ regarding wages and the number of trips that were being made, which re-
At this time, defendant was a crane operator for Ready Mix Concrete, Inc. William L. Hendon was a son-in-law of defendant and had beén employed by plaintiff’s brother as a driver for the Allstate Sup-’ ply Company. Plaintiff’s trucks worked .out of 'the yards of the Ready Mix Concrete, Inc. Plaintiff’s-equipment was usually laid off from about the- first of November through the following March or April.' Plaintiff was approached by defendant who informed ■ him that if he (defendant) had a truck it would have a preference at Ready Mix Concrete, Inc., and urged plaintiff to transfer title to him so that the same could be displayed to the yard owner and the truck kept operating. After some discussion, plaintiff -agreed to transfer title to defendant and put William Hendon on his payroll. Plaintiff took a lease back on, this equipment. After the title was transferred, William Hendon was placed on plaintiff’s payroll and drove the equipment until April, 1950. The arrangement with Earp continued until the middle of January, 1950, when William Hendon had an accident and was informed by plaintiff that there was no liability insurance.
The cause came on for trial at which time defendant claimed that he purchased plaintiff’s equipment ■for the sum of $6,500 on September 20, 1949, which was paid at defendant’s home.
During the course of the trial the court indicated ¡he wanted lie detector tests before deciding the issues. He said:
The trial resumed and later, the following took place in the court’s chambers.
“The Court: I will put this on the record. Both counsel are. present and I want to confirm the agreement of counsel that their clients have consented voluntarily to submit to this polygraph test. They are each paying half of the expense of the test. This is $25 cash. Have you collected that 1
“Mr. Gallagher: I have.
“The Court: Have you?
“Mr. Eggenberger: I will.
“The Court: You also consent to have your client answer any questions that the operator feels might aid the court in reaching a decision and having the questions and answers taken by the operator and then read in court afterwards subject to your cross-examination?
“Mr. Eggenberger: As far as the plaintiff is concerned it is so agreed and I will stipulate upon the same lines with Mr. Gallagher, counsel for the defendant.
“Mr. Gallagher: We will enter our agreement on the record and make the same stipulation.
“The Court: As to all those matters.”
(Thereupon the polygraph tests were given in a private room, after which at 1:05 o’clock p.m. all parties returned to the courtroom.)
Alex L. Gregory, the witness called by stipulation: of counsel, testified that he was a personnel consultant and conducts lie detector examinations. He stated: j
“I have formed an opinion with relation to' that; matter and it is my opinion that Garrett Stone is'
At the close of the proofs, the trial court filed an opinion decreeing defendant to be the legal and equitable owner of the vehicles in question. The court’s opinion contains the following:
“The polygraph tests were a definite aid to the court in this case, in supporting what appeared to be the preponderance of evidence, and in removing doubt in the court’s mind as to the possibility of fraud owing to the fact all of defendant’s 3 witnesses to the payment were his own immediate family.
“The court is satisfied from the testimony and the written instruments that a sale and purchase and payment in full ($6,500) took place, vesting title in the defendant.”
Plaintiff appeals and urges that it was error to give consideration and weight to the opinion of the polygraph operator. In our opinion it was error to introduce in evidence the result of the tests, but such error was not prejudicial for reasons hereinafter discussed.
In
People
v.
Becker,
Defendant urges that the use of the polygraph and resultant opinion evidence given at the trial were not necessary for decision and relies on
Central Rent-A-Car & Garages, Inc.,
v.
Franklin Mutual Ins. Co. of Illinois,
We are not unmindful of the fact that at the direction of the trial court, the parties agreed to submit to the tests, but whether by voluntary agreement, court direction, or coercion, the results of such tests do not attain the stature of competent evidence. In the case at bar the trial court had about concluded that the preponderance of evidence was in- defendant’s favor prior to the admission of such tests. This is only another' way of stating that plaintiff liad not maintained the burden of proof. In all civil cases, whether in law or chancery, the burden of proof is upon the claimant. Under the circumstances of this case the admission of the result of the tests in evidence, while error, was not prejudicial for reasons heretofore stated.
Plaintiff also urges that the findings, opinion and decree of the trial court are not supported by the record and are against the Weight of the evidence. The principal issue in this case is whether the truck was paid for. Plaintiff claims that no money was paid, while defendant claims that the sum of $6,500 was' paid by him to plaintiff in bills which he had in a bos in- his bedroom closet.
Plaintiff testified:
“Mr. Earp never paid me any money at any time. Erom September 20 on I never paid him any money, I did give him one check around the first of October for around $12 for a side mirror that had been put on by Hendon and an oil change and transmission grease that he had. a bill on. The check was made out to Earp and this was after Hendon started to drive.” •
“I have never received any money from Earp and never saw him pay any money to my husband. In the conferences between them there was never any discussion about paying for the truck. I have never received any money from Earp and never seen him pay any money to my husband and never saw any of the $6,500 that Earp claims he paid for the truck. In the conferences between them there was never any discussion about paying for the truck.”
Defendant testified:
“That is my signature on plaintiff’s exhibit 3, the title. It was signed on September 20, 1950 at a notary public’s on Van Dyke. Only Mr. Stone and I were present. The lease and title were signed the same night but the lease was signed after the title was transferred. The title was transferred to me because I bought the truck and paid Stone $6,500 that I had in my home. I have had some of it since ■1941. I had more than $6,500 at the time I paid Stone. I had $585 left in the box after I paid him.”"
Marie Earp, wife of defendant, testified:
“I know of my own knowledge that there was money paid to Garrett Stone that night. I saw the money. We had it in our bedroom closet. I think I know how much money was there. I saw the money paid to Garrett Stone. My husband had. told me how much money he was going to pay. The night before he had talked to me about buying the truck and we went out and looked at several different trucks. My husband paid $6,500 for this truck. There was $6,500 in the house previous to the transaction. I saw the money in Mr. Stone’s possession.’
William Hendon, son-in-law of defendant, testified:
“I saw Mr. Earp go in his bedroom and come out with some money. It was a stack of bills and him
Nell Hendon, daughter of defendant, testified:
“I saw some money- in the kitchen. My father went in the bedrom and got it. After I saw the money in the kitchen Mr. Stone put it' in his pocket. At that time 1 was sitting on the couch near the door and could see through the door into the kitchen. * *
“After the Stones left that night my father told me that he paid $6,500 for the truck. I saw my father come out of the bedrom with money in his hand and he walked out into the kitchen. Mr. Stone was standing in the door and no one else went into the kitchen. I didn’t hear any discussion, between Stone and Earp as I was looking at the televisión. It wasn’t hard to watch the television and watch the cash being passed out in the kitchen. The money was counted out by my father after he put it on the table. I saw him count it but I didn’t hear him- count it. I don’t have any idea what the bills were. My father never told me what denominations the bills were.”
It is apparent that the testimony of the witnesses is in hopeless conflict, but this being an appeal in
The decree is affirmed, with costs to defendant.